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Home My WebLink About2023SA258 - City v. Lazy D Grazing Association, et al. - 01 - Notice Of Appeal SUPREME COURT, STATE OF COLORADO Two East 14 Avenue Denver, Colorado 80203 Appeal from District Court, Water Division 1 Honorable Judge Todd Taylor Case No. 2020CW3113 IN RE THE APPLICATION FOR WATER RIGHTS OF LAZY D GRAZING ASSOCIATION, IN WELD COUNTY Opposers-Appellants: City of Sterling and City of Fort Collins v. Applicant-Appellee: Lazy D Grazing Association Opposers-Appellants: Basin Lands, LLC; Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users Association; City of Boulder; City of Englewood; City of Greeley, acting by and through its Water and Sewer Board; City of Thornton; L.G. Everist, Inc.; Northern Colorado Water Conservancy District; Mary Estabrook; State Engineer and Division Engineer for Water Division No. 1; and United Water and Sanitation District. Attorneys for City of Sterling, Colorado: Alan E. Curtis, #34571; Virginia M. Sciabbarrasi, #39753 WHITE & JANKOWSKI LLC 1333 W. 120th Ave., Suite 302 Westminster, Colorado 80234 Phone: (303) 595-9441 Fax: (303) 825-5632 Email: alanc@white-jankowski.com virginias@white-jankowski.com Attorney for the City of Fort Collins, Colorado: FORT COLLINS CITY ATTORNEY’S OFFICE Eric R. Potyondy, #38243 300 LaPorte Avenue Fort Collins, Colorado 80521 Phone: (970) 416-2126 Fax: (970) 221-6327 Email: epotyondy@fcgov.com Case Number: NOTICE OF APPEAL DATE FILED: October 4, 2023 2:52 PM FILING ID: DD0BFED1513BE CASE NUMBER: 2023SA258 2 Opposers-Appellants, City of Sterling and City of Fort Collins (“Cities”), by and through their attorneys, and pursuant to Rule 3(d) of the Colorado Appellate Rules, respectfully submit this Notice of Appeal: 1. Description of the Nature of the Case. a. General statement of the nature of the controversy. i. Lazy D Grazing Association (“Lazy D”) filed an application with the District Court for Water Division 1 (“Water Court”) designated as Case No. 2020CW3113 (“Application”). Lazy D sought a decree determining groundwater in the Upper Laramie Aquifer underlying approximately 24,711 acres of Lazy D’s land in northern Weld County (“Subject Groundwater”) to be nontributary (“Lazy D’s Nontributary Claims”). ii. The Colorado State Engineer (“State Engineer”) filed a Determination of Facts, dated March 31, 2021, regarding Lazy D’s Nontributary Claims, purportedly in accordance with C.R.S. § 37-92-305(6)(b) (“State Engineer’s Findings of Fact”). iii. Following a five-day bench trial held April 10 -12 and 24-25, 2023, the Water Court entered its Findings of Fact and Conclusions of Law on August 18, 2023 (“Order”) and its Findings of Fact, Conclusions of Law and Decree of the Water Court on September 6, 2023 (“Decree”). 3 iv. The Order and Decree approved Lazy D’s Nontributary Claims. b. Judgment, order, or parts being appealed and the basis for appellate jurisdiction. i. Cities appeal the Order and Decree. ii. Appellate jurisdiction is under Rule 1(a)(2) of the Colorado Appellate Rules, which states an appeal may be taken regarding “a judgment and decree, or any portion thereof, in a proceeding concerning water rights.” iii. Supreme Court jurisdiction is appropriate under C.R.S. § 13-4-102(1)(d), which excludes water cases involving adjudications from the jurisdiction of the Court of Appeals. c. Whether the judgment or order resolved all issues pending before the trial court including attorneys’ fees and costs. i. The Order and Decree resolved all issues before the Water Court. d. Whether the judgment was made final for purposes of appeal pursuant to C.R.C.P. 54(b). i. Not applicable. e. The date judgment or order was entered and the date of mailing to counsel . i. The Order was entered by the Court and served upon all parties via the Colorado Courts E-Filing System (“CES”) on August 18, 2023. ii. The Decree was entered by the Court and served upon all parties via CES on September 6, 2023. 4 f. Extensions to file motions for post-trial relief. No extensions to file motions for post-trial relief were sought or granted. g. Date any motion for post-trial relief was filed. Not applicable. See C.R.C.P. 59(b). h. Date any motion for post-trial relief was denied or deemed denied under C.R.C.P. 59(j). i. Not applicable. i. Whether there were extensions granted to file notices of appeal . i. Not applicable. j. Description of water rights. i. See Rule 1(e) of the Colorado Appellate Rules. The water rights that are the subject of the appeal are the nontributary groundwater rights to the Subject Groundwater claimed in the Application and granted in the Decree. 2. Advisory Listing of Issues to be Raised on Appeal. a. Whether the Water Court erred in ruling that C.R.S. § 37 -92-305(6)(b) and statutes referenced therein (“Relevant Statutes”) give the State Engineer authority to determine that groundwater is nontributary. b. Whether the Water Court, based on its interpretation and application of the Relevant Statutes, erred in ruling that Cities must rebut determinatio ns in the 5 State Engineer’s Findings of Fact before Lazy D had the burden of proving Lazy D’s Nontributary Claims. c. Whether the Water Court, based on its interpretation and application of the Relevant Statutes, erred in the standard applied to Cities’ rebutt al of the determinations in the State Engineer’s Findings of Fact. d. Whether the Water Court erred, based on its interpretation and application of the Relevant Statutes, in ruling that the burden of proof shifted from Lazy D having to prove Lazy D’s Nontributary Claims by clear and convincing evidence to Cities having to prove the Subject Groundwater is tributary. e. Whether the Water Court erred by speculating and relying on personal knowledge and information not in evidence. f. Whether the Water Court’s findings, including with respect to expert witnesses and the weight accorded to their testimony and supporting exhibits, were manifestly erroneous. 3. Whether the Transcript of any Evidence Taken Before the Trial Court or Any Administrative Agency Is Necessary to Resolve the Issues Raised on Appeal. The transcript of testimony and all exhibits offered and admitted into evidence during the five-day bench trial are necessary to resolve the issues raised on appeal. 6 4. Whether the Order on Review Was Issued by a Magistrate Where Consent Was Necessary. a. Not applicable. 5. Names of Counsel for the Parties. Attorneys for Lazy D Grazing Association: Bradley C. Grasmick, #35055 Ryan M. Donovan, #44435 Wesley S. Knoll, #48747 Richard LiPuma, #17892 Lawrence, Custer, Grasmick, Jones & Donovan LLP 5245 Ronald Reagan Blvd., Suite 1 Johnstown, Colorado 80534 (970) 622-8181 brad@lcwaterlaw.com ryan@lcwaterlaw.com wes@lcwaterlaw.com rich@lcwaterlaw.com Attorneys for Cache La Poudre Water Users Association: Daniel Kenneth Brown, #30799 Whitney Phillips Coulter, #51533 Fischer, Brown, Bartlett, Larsen & Irby, P.C. 1319 E. Prospect Road Fort Collins, Colorado 80525 (970) 407-9000 danbrown@fischerbrownlaw.com whitneycoulter@fischerbrownlaw.com Attorneys for City of Sterling, Colorado: Alan E. Curtis, #34571 Virginia M Sciabbarrasi, #39753 White & Jankowski LLC 1333 W. 120th Ave., Suite 302 Westminster, Colorado 80234 (303) 595-9441 alanc@white-jankowski.com virginias@white-jankowski.com Attorney for the City of Fort Collins, Colorado: Fort Collins City Attorney’s Office Eric R. Potyondy, #38243 300 LaPorte Avenue Fort Collins, Colorado 80521 (970) 416-2126 epotyondy@fcgov.com Attorney for City of Thornton, Colorado: Kara N. Godbehere, #36742 City of Thronton 9500 Civic Center Drive Thornton, Colorado 80229-4326 (303) 538-7210 kara.godbehere@thorntonco.gov 7 Attorney for Basin Lands LLC: Matthew Machado, #31233 Lyons Gaddis, P.C. P.O. Box 978 Longmont, Colorado 80502 (720) 726-3672 mmachado@lyonsgaddis.com Attorneys for Bijou Irrigation Company: Stuart B. Corbridge, #33355 Bradley Neil Kershaw, #52386 Vanesh and Raisch, LLP 5303 Spine Road, Suite 202 Boulder, Colorado 80301 Phone: (303) 443-6151 sbc@vrlaw.com bnk@vrlaw.com Attorneys for City of Boulder, Colorado: Jessica Lynn Pault-Atiase, #36739 The City of Boulder, Colorado Office of the City Attorney 1777 Broadway P.O. Box 791 Boulder, Colorado 80306-0791 (303) 441-3020 pault-atiasej@bouldercolorado.gov Lisa M. Thompson, #35923 Michael A. Kopp, #43204 Trout Raley 1120 Lincoln Street, Suite 1600 Denver, Colorado 80203 (303) 861-1963 lthompson@troutlaw.com mkopp@troutlaw.com Attorneys for State Engineer and Division Engineer for Water Division No. 1: Philip J. Weiser, Attorney General Assistant Attorney General Bruce Conlan Walters, #50235 Emilie B. Polley, #51296 Natural Resources & Environment Section 1300 Broadway, 7th Floor Denver, Colorado 80203 (720) 508-6255 bruce.walters@coag.gov emilie.polley@coag.gov Attorneys for Northern Colorado Water Conservancy District: Bennett William Raley, #13429 Lisa M. Thompson, #35923 Michael A. Kopp, #43204 Trout Raley 1120 Lincoln Street, Suite 1600 Denver, Colorado 80203 (303) 861-1963 braley@troutlaw.com lthompson@troutlaw.com mkopp@troutlaw.com Attorney for LG Everist Inc.: Matthew Lake Merrill, #37918 Merrill Law, LLC 6631 Mariposa Ct. Denver, Colorado 80221 (303) 947-4453 matthew@merrillwaterlaw.com 8 Attorneys for City of Greeley, Colorado, acting by and through its Water and Sewer Board: Greeley City Attorney’s Office Jerrae C. Swanson, #40590 Daniel J. Biwer, #46308 Greeley City Attorney’s Office 1100 10th Street, Suite 401 Greeley, Colorado 80631 (970) 350-9757 Jerrae.swanson@greeleygov.com Daniel.biwer@greeleygov.com Carolyn F. Burr, #25978 James Merle Noble, #36716 Jens Jensen, #47471 Wellborn Sullivan Meck & Tooley, P.C. 1125 17th Street, Suite 2200 Denver, Colorado 80202 (303) 830-2500 cburr@wsmtlaw.com jnoble@wsmtlaw.com jjensen@wsmtlaw.com Special Counsel for the City of Englewood, Colorado: Peter D. Nichols, #33167 Geoffrey M. Williamson, #35891 Patrick Michael Haines, #38970 Megan Christensen, #50344 Berg Hill Greenleaf Ruscitti LLP 1712 Pearl Street Boulder, Colorado 80302 (303) 402-1600 pdn@bhgrlaw.com gmw@bhgrlaw.com pmh@bhgrlaw.com mg@bhgrlaw.com Attorneys for United Water and Sanitation District: Tod Jay Smith, #15417 Ann M. Rhodes, #39095 Law Office of Tod J. Smith, LLC 5777 Central Avenue, Suite 228 Boulder, Colorado 80301 (303) 444-4203 tod@tjs-law.com amr@amr-law.com 6. Appendix. Appendix A – Order, dated August 18, 2023. Appendix B – Decree, dated September 6, 2023. 9 Respectfully submitted October 4, 2023. WHITE & JANKOWSKI LLC By: ______________________________ Alan E. Curtis, #34571 Virginia M. Sciabbarrasi, #39753 ATTORNEYS FOR CITY OF STERLING E-Filed per C.R.C.P. 121. Duly signed original on file at White & Jankowski LLC FORT COLLINS CITY ATTORNEY’S OFFICE By: _______________________________ Eric R. Potyondy, #38243 ATTORNEY FOR CITY OF FORT COLLINS 10 CERTIFICATE OF SERVICE I certify on October 4, 2023, a true and correct copy of the foregoing NOTICE OF APPEAL was served via Colorado Courts E-Filing, on the Division 1 Water Court and the following parties in Case No. 20CW3113: ______________________________________ Andrea Browne, Legal Administrative Assistant Party Name Party Type Attorney Name/Organization Basin Lands LLC Opposer MATTHEW MACHADO (Lyons Gaddis PC) Bijou Irrigation Company Opposer BRADLEY NEIL KERSHAW (Vranesh and Raisch) STUART B CORBRIDGE (Vranesh and Raisch) Bijou Irrigation District Opposer BRADLEY NEIL KERSHAW (Vranesh and Raisch) STUART B CORBRIDGE (Vranesh and Raisch) Cache La Poudre Water Users Association Opposer DANIEL KENNETH BROWN (Fischer Brown Bartlett Larsen and Irby PC) WHITNEY PHILLIPS COULTER (Fischer Brown Bartlett Larsen and Irby PC) City of Boulder Opposer JESSICA LYNN PAULT-ATIASE (Boulder City Attorney’s Office) LISA M THOMPSON (Trout Raley) MICHAEL A KOPP (Trout Raley) City of Englewood Opposer GEOFFREY M WILLIAMSON (Berg Hill Greenleaf & Ruscitti LLP) MEGAN CHRISTENSEN (Berg Hill Greenleaf & Ruscitti LLP) PATRICK MICHAEL HAINES (Berg Hill Greenleaf & Ruscitti LLP) PETER D NICHOLS (Berg Hill Greenleaf & 11 Party Name Party Type Attorney Name/Organization Ruscitti LLP) City of Fort Collins Opposer ERIC RYAN POTYONDY (City Attorney’s Office) City of Greeley Acting By And Through Opposer CAROLYN F BURR (Welborn Sullivan Meck & Tooley, P.C.) DANIEL JAMES BIWER (City of Greeley) JAMES MERLE NOBLE (Welborn Sullivan Meck & Tooley, P.C.) JENS JENSEN (Welborn Sullivan Meck & Tooley, P.C.) City of Sterling Opposer ALAN E CURTIS (White and Jankowski LLC) VIRGINIA MARIE SCIABBARRASI (White and Jankowski LLC) City of Thornton Opposer KARA NICOLE GODBEHERE (City of Thornton) Division 1 Engineer Division Engineer DIVISION 1 WATER ENGINEER (State of Colorado DWR Division 1) Lazy D Grazing Assoc Applicant BRADLEY CHARLES GRASMICK (Lawrence Custer Grasmick Jones and Donovan LLP) RICHARD T LI PUMA (Lawrence Custer Grasmick Jones and Donovan LLP) RYAN MATTHEW DONOVAN (Lawrence Custer Grasmick Jones and Donovan LLP) WESLEY SAGE KNOLL (Lawrence Custer Grasmick Jones and Donovan LLP) Lg Everist Inc Opposer MATTHEW LAKE MERRILL (MERRILL LAW LLC) Mary Estabrook Opposer N/A Northern Opposer BENNETT WILLIAM RALEY (Trout Raley) 12 Party Name Party Type Attorney Name/Organization Colorado Water Conservancy District LISA M THOMPSON (Trout Raley) MICHAEL A KOPP (Trout Raley) State Engineer State Engineer COLORADO DIVISION OF WATER RESOURCES (State of Colorado - Division of Water Resources) State Engineer And Water Div 1 Engineer Opposer BRUCE CONLAN WALTERS (CO Attorney General) EMILIE BLAKE POLLEY (CO Attorney General) United Water And Sanitation District Opposer ANN MARIE RHODES (The Law Office of Tod J Smith) TOD JAY SMITH (The Law Office of Tod J Smith) D ISTRICT C OURT , W ATER D IVISION 1 , C OLORADO 901 9th Avenue, P.O. Box 2038, Greeley, CO 80632 (970) 475-2400 ▲ COURT USE ONLY ▲ Concerning the Application for Water Rights of: Lazy D Grazing Association In Weld County. Case No. 2020 CW 3113 Division 4 Findings of Fact and Conclusions of Law After a 5-day bench trial held on April 10-12, 2023, and then April 24-25, 2023, the court makes findings of fact and conclusions of law. 1. Findings of Fact A. The Lazy D Ranch The applicant, the Lazy D Grazing Association, filed its original application in July 2020 seeking a determination that groundwater in the Upper Laramie Aquifer underlying land owned by Lazy D is nontributary. Lazy D filed an amended application in November 2020 adding additional acreage. Altogether, Lazy D seeks a determination that the groundwater in the Upper Laramie Aquifer underlying a total of 24,711 acres is nontributary. These 24,711 acres—the Lazy D Ranch—are located in northern Weld County, Colorado along both sides of Highway 85 and is bordered by Wyoming to the north. Along its western boundary, the Lazy D Ranch borders land owned by the Terry Grazing Association Ranch. Lazy D also owns property in Wyoming immediately north and adjacent to its Colorado land. DATE FILED: August 18, 2023 6:42 PM CASE NUMBER: 2020CW3113 APPENDIX A TO NOTICE OF APPEAL FROM CASE NO. 20CW3113 (WATER DIVISON 1) DATE FILED: October 4, 2023 2:52 PM FILING ID: DD0BFED1513BE CASE NUMBER: 2023SA258 Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 2 of 33 The Lazy D’s land at issue here lies outside any designated groundwater basin and the aquifers underlying this land are not part of the legislatively- determined Denver Basin aquifers. (Although the Upper Laramie Aquifer shares some geological features with the Denver Basin aquifers.) The terrain on the Lazy D Ranch is gently rolling hills and the vegetation is comprised of non-irrigated native grasses and shrubs, which are used by Lazy D’s members for grazing cattle. The amount of grazing is dependent on the quality of the grass, which in turn is dependent on the amount of precipitation on the Lazy D Ranch. No irrigation occurs on the Lazy D Ranch. B. Geology of the Lazy D Ranch The Lazy D Ranch lies in the Cheyenne sub-basin of the Denver-Julesburg Basin. The Cheyenne Basin shares some geological similarities with the Denver Basin. Both the Cheyenne Basin and the Denver Basin are depositional basins made up of distinct layers of clays, shales, and sandstones. The Cheyenne Basin is bounded by the Hartville Uplift on the northwest, the Chadron Arch on the northeast and the Greeley Arch on the south, which separates it from the Denver Basin and the alluvium of the South Platte and Cache la Poudre Rivers. The geological formations within the Cheyenne Basin of most importance here are (ordered from top to bottom): Ogallala, White River, Laramie, Fox Hills, and Pierre Shale. The testimony at trial mostly focused on the White River, Laramie, and Fox Hills formations. Like the Denver Basin, the formations in the Cheyenne Basin are generally nested in bowl-like shapes, as shown in this conceptual diagram from Exhibit LD-43 showing the relationship between the Cheyenne Basin (on the left) and the Denver Basin: Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 3 of 33 Where the edges of the bowl-like formations are exposed at the ground surface (through erosion over long stretches of time) they create visible “outcrops.” The Ogallala and White River formations comprise most of the near-surface bedrock underneath the Lazy D. The Laramie formation, which lies beneath the White River formation, outcrops in the southwestern areas of the Lazy D. The White River formation consists of distinct stratigraphic units called the Chadron member and the Brule Clay member. The Chadron is the upper most member and is comprised mostly of gravel-sized clastic rocks (claystones, mudstones, siltstones), carbonates, volcanic tuff, with thin sandstone beds. A clastic rock is a type of sedimentary rock, made up of deposited fragments of other rocks or minerals, such as grains of quartz, feldspar, clay minerals, or Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 4 of 33 sand. The Brule Clay member lies at the base of the White River formation and is comprised of a thick layer of stiff and sticky siltstones and claystones. 1 These siltstones and claystones absorb groundwater, which causes them to swell. Because these materials are dense and tend to trap water, they are poorly permeable and tend to stop water from moving vertically (or, if uplifted to a sufficient angle, from moving horizontally), forming a confining layer. Thus, the Brule Clay member tends to become a confining boundary for water movement wherever it exists in the White River formation. The Laramie formation is found below the White River formation underneath most of the Lazy D sRanch, except where the Laramie formation has been pushed upward by geological forces near the southwest boundary of the Ranch. Erosion over long stretches of time has worn away the White River formation and caused the Laramie formation to outcrop in this area of the Ranch. The areas where the Laramie formation outcrops (both within and outside the Ranch’s boundaries) are where the Upper Laramie Aquifer is recharged through precipitation and infiltration (discussed in more detail below). The Laramie formation is composed of interbedded sandstone, shale, claystone, and coal. The Laramie formation is separated into three zones: (1) the 1 Lithified sedimentary rocks are sediments that have hardened through chemical alteration and the pressure of thousands of feet of overburden (overlying sediments). Under these pressures (which are accompanied by higher temperatures), sand deposits become sandstone, silt deposits become siltstone, and clay beds become claystone or shale. Thomas Harter, et al., Adjudicating Groundwater 19-20 (National Judicial College, Dividing the Waters; 2018). Claystone is formed from compacted clay, which is not easily separated into thin layers, and is therefore non-cleavable; whereas, slate is formed by thin, laminated layers of clay, and is cleavable. Encyclopedia Britannica, “claystone”, 15 Feb. 2016, https://www.britannica.com/science/claystone (accessed 10 August 2023). Chemical sedimentary rocks are formed by deposits of the chemical precipitation of carbonate and salts (limestone, dolomite, gypsum), typically in shallow ocean basins. Harter at 20. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 5 of 33 upper zone consists of thick sandstone beds interbedded with layers of clays and shales; (2) the middle zone is a shale interval, comprised of layers of claystones and shales; and (3) the lower zone consists primarily of sandstones and siltstones. Clay particles are smaller than silt particles, and significantly smaller than sand particles, as can be seen from this table (from Thomas Harter, et al., Adjudicating Groundwater at 18 (National Judicial Conference, Dividing the Waters; 2018)): The Brule Clay member of the White River formation and the middle shale interval of the Laramie formation consist primarily of claystones or shales, which are poorly permeable because of the density resulting from the small clay particles from which they are composed being highly compressed together, leaving little to no space for water to move. The Brule Clay member and the middle shale interval thus act as confining layers, thereby creating an aquifer in Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 6 of 33 the upper zone of the Laramie formation, which is comprised of interbedded sandstone layers. These sandstones layers are relatively less dense and the bigger sand particles of which they are composed allow space in which water can move and be stored. These conditions create a confined aquifer able to become fully saturated with water through recharge and infiltration, forming the Upper Laramie Aquifer at issue here. C. Surface Hydrology of the Lazy D Ranch No perennial streams flow within the boundaries of the Lazy D Ranch. Ephemeral streams do flow within the boundaries of the Ranch, but the alluvium associated with these ephemeral streams does not produce water in sufficient quantities to support irrigation. Intermittent and ephemeral streams are found to the south and west of the Ranch and experience water flow in sufficient amounts and duration to create perennially saturated alluvium in these areas. At trial, the parties focused primarily on Spring Creek and Lone Tree Creek. The Spring Creek system overlies a portion of the Laramie formation outcrop southwest of the Ranch and flows generally from the north-northwest to the south-southeast. The Spring Creek system contributes to recharge of the Upper Laramie Aquifer through infiltration. The Lone Tree Creek system also overlies a portion of the Laramie formation outcrop southwest of the Ranch and flows generally from the northwest to the southeast. A stretch of Lone Tree Creek transects a non-contiguous parcel of the Ranch near the southwest corner. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 7 of 33 D. Hydrology of t he Upper Laramie Aquifer The flow of groundwater in the Upper Laramie Aquifer moves generally from the west and south in Colorado to the north and east into Wyoming. Discharge of water from this aquifer occurs primarily from well pumping in both Colorado and Wyoming, where the upper Laramie formation is referred to as the “Lance” formation. Recharge to the Upper Laramie Aquifer occurs primarily from precipitation and infiltration along the western outcrop of the upper Laramie formation, which is near the eastern edge of the Front Range of the Rocky Mountains in Colorado and Wyoming. Stream flows also contribute recharge through infiltration where streams and their alluvium overlie the outcrop of the upper Laramie formation. But because an unsaturated zone of geological material exists between the alluvium of these surface flows and the Upper Laramie Aquifer, the rate of recharge from the surface flows is unaffected by any withdrawals or other depletions to the Upper Laramie Aquifer. The primary issue at trial—if not the sole issue—is the extent to which well withdrawals on the Lazy D Ranch of groundwater from the Upper Laramie Aquifer will affect surface stream flow. But the issue here is not whether the Upper Laramie Aquifer receives recharge from surface stream flows; all the parties agree that some amount of water from surface stream flows infiltrates the ground and eventually percolates down to recharge the aquifer. The statutory definition of nontributary groundwater in § 37-90-103(10.5), C.R.S. 2023, focuses on how withdrawals will affect the rate of flow of natural streams with which the groundwater in a particular aquifer may be in hydraulic connection. Thus, the question the court must answer here is whether withdrawals from the Upper Laramie Aquifer will increase the rate at which Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 8 of 33 surface water sources (or their alluvium) recharges the aquifer. If the rate of recharge will increase because of well withdrawals from the Upper Laramie Aquifer, that will have the effect of reducing the quantity of water available to sustain surface flows. But if the rate of recharge is unaffected by withdrawals from the aquifer, then there will be no effect on stream flows and the groundwater in the Upper Laramie Aquifer is nontributary because its withdrawal will not cause depletions to a natural stream. Lazy D’s expert, Walter Niccoli, opines that withdrawals made to the Upper Laramie Aquifer underlying the Lazy D Ranch will not affect the surface flow of any alluvial stream system. Niccoli supports his opinions with a great deal of data and evidence. Relying primarily on this same data and evidence, the opposers’ expert, Timothy Crawford, opines that a hydraulic connection exists between the Upper Laramie Aquifer and the nearby surface alluvial systems. Crawford did not quantify this hydraulic connection in terms of the relationship between withdrawals in aquifer and depletions in the surface stream; he merely opined that the groundwater in the Upper Laramie Aquifer shares a hydrological connection at some points around the alluvium of the overlying stream systems (primarily the Spring Creek system), such that withdrawals will cause depletions of more than an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. Implied in Crawford’s use of the term, hydraulic connection—although he did not explicitly testify to this—is that there is a direct hydrological connection between the Upper Larimer Aquifer and the overlying stream systems significant enough for the aquifer and stream systems to constitute one water supply on those areas where they are connected. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 9 of 33 Yet, Crawford conceded in cross-examination that: ▪ bedrock material (consolidated, lithified sediments that have hardened into rock), which is in contact with alluvial material (unconsolidated, unlithified sediments), must be saturated before a hydraulic connection will exist; ▪ the material in contact with the Upper Laramie Aquifer underlying the Spring Creek alluvial system is not fully saturated; and ▪ portions of the Upper Laramie Aquifer are under confined aquifer conditions, including where the upper Laramie formation outcrops at the surface. These concessions are significant because they contradict Crawford’s opinions and support the opinions expressed by Lazy D’s expert, Niccoli. The court finds Niccoli’s opinions to be more fully developed and better supported than Crawford’s, and so finds Niccoli’s opinions to be more credible. Niccoli offered extensive testimony about his opinion that the Upper Laramie Aquifer is separated from the Spring Creek and Lone Tree Creek alluvial systems by unsaturated material, and he provided substantial data and other evidence to support this opinion. While Crawford attempted to quibble about how much water must be present in geologic material before it is considered to be fully saturated, in the end he conceded that any alluvial material in contact with the Upper Laramie Aquifer is less than 100% saturated. Niccoli’s explanation that anything less than 100% saturation is considered “unsaturated” is consistent with other authority and makes logical sense. For example, one authority defines saturated as a term used to describe a material that is holding as much water as can be held or absorbed. Soil, sediments, or rock fractures are Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 10 of 33 saturated when water completely fills the void space of sediment pores or rock fractures. Harter, supra, at 92 (emphasis added); see also Ground Water Glossary, U.S. GEOLOGICAL SURVEY, https://pubs.usgs.gov/gip/gw/glossary.html (defining unsaturated zone as a “subsurface zone above the water table where the pore spaces may contain a combination of air and water”) (accessed 10 August 2023). The court also finds Niccoli’s opinion that the recharge rate from the alluvial sources near the Lazy D Ranch is fixed due to the existence of an unsaturated zone between the alluvial deposits (where present) and the Upper Laramie Aquifer to be well-supported and credible. It is logical—and would seem to be non-controversial, that unsaturated zone defines an area where the pore space of a geologic material is only partially filled with water. Crawford grudgingly conceded this point, but his recalcitrance indicates to the court that he recognized this concession tends to negate his other opinions. Niccoli also relies on Darcy’s Law, which generally describes water flow in an unsaturated porous media, to explain his opinion that the rate at which a surface alluvial system recharges the Upper Laramie Aquifer is unaffected by withdrawals from the aquifer. Niccoli’s explanation is consistent with other authority, such as this article about the interaction of groundwater and streamflow: The downward flow in the unsaturated zone between the stream and the water table is controlled by gravity. Thus, the seepage rate is the same for a groundwater depth of 10 ft below the stream bottom with about 10 ft of unsaturated zone as for a groundwater depth of 100 ft below the stream with about 100 ft of unsaturated zone, or, for that matter, for an infinitely deep water table below an infinitely thick unsaturated zone. Groundwater depletion by pumping will then not significantly Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 11 of 33 increase the seepage rate from the stream. To obtain unsaturated flow below the stream, the top of the capillary fringe above the water table must be below the stream bottom. The thickness of the capillary fringe may vary from 0.3ft or less for coarse sandy and gravelly materials to about 1 ft for medium sands, 2 ft for silty or loamy sands, and 3 ft or more for loams and clays. Because most stream channels run in relatively coarse alluvium, it can be concluded that … groundwater depletion by pumping of wells generally will not “pull” more water out of streams if the groundwater level is already deeper than about 3 ft below the stream bottom. Herman Bower & Thomas Maddock, III, Making Sense of the Interactions Between Groundwater and Streamflow: Lessons for Water Masters and Adjudicators, RIVERS, Vol. 6, No. 1, at 28 (1997). Another authority explains: Identification of the hydrologic condition of a “hydraulic connection” plays a critical role in conjunctive surface and ground water management. It is the off-on switch that determines whether ground water pumping has a depletion effect on a surface water body or reach. A hydraulic connection between surface and ground water occurs when there is a continuous saturated zone connecting the two…. A stream or lake that has a bottom far above the water table or aquifer will likely have unsaturated conditions (pores containing air) beneath it and therefore cannot be hydraulically connected. Under this condition, termed “perched,” ground water pumping would not deplete the surface water. Gary S. Johnson, Hydrologic Complications of Conjunctive Management, 47 IDAHO L. REV. 205, 206 (2011) (footnotes omitted).2 2 The difference between hydrology and hydraulics can be confusing. While these two disciplines are related and often interdependent, hydrology involves the movement of water Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 12 of 33 The Colorado Supreme Court has recognized the hydrological principle of aquifers having saturated zones and unsaturated zones in Bd. of Cnty. Comm’rs of Cnty. of Park v. Park Cnty. Sportsmen’s Ranch, LLP. 45 P.3d 693, 702 (Colo. 2002) (“Aquifers consist of unsaturated and saturated zones. The unsaturated zone contains both air and water in the spaces between the grains of sand, gravel, within the earth’s atmosphere, on its surface, and underground; whereas, hydraulics involves the movement of fluids under pressure in a confined system, e.g., a pipe or a channel. But as this quotation from a professor of geological sciences demonstrates, hydraulic principles can inform and affect hydrological determinations, and vice versa. To make matters more confusing, the Colorado Supreme Court has referred in water cases to both a “hydrological connection”—see, e.g., Well Augmentation Subdistrict of Cent. Colorado Water Conservancy Dist. v. City of Aurora, 221 P.3d 399, 414 (Colo. 2009) (WAS), and Danielson v. Jones, 698 P.2d 240, 250 (Colo. 1985)—and a “hydraulic connection”—also in the WAS case, 221 P.3d at 407 n.2, and numerous other cases, see, e.g., Santa Maria Reservoir Co. v. Warner, 2020 CO 27, ¶ 46. I didn’t take the time to count the instances where the Supreme Court used these two terms, but a rough estimate is that it is an even split. The General Assembly also used both terms, using hydraulically connected in the statutory definition of underground water in § 37-92-103(11), C.R.S. 2023: “water in the unconsolidated alluvial aquifer of sand, gravel, and other sedimentary materia ls and all other waters hydraulically connected thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or natural stream”; but then using hydrologically connected in § 25-8- 501.1(2)(b), C.R.S. 2023. After falling down a rabbit hole researching this issue (one of many such rabbit holes encountered in drafting this order), I found the following (likely apocryphal) story: The difference between hydrology and hydraulics continues to confuse laypersons. Even engineers are often fuzzy about the subject. Several years ago, at a conference in San Francisco, I met a colleague who was employed with a leading engineering firm. He had gotten his doctorate in hydraulic engineering at a reputable school and had eventually risen to become section head at his firm. Yet, the title in his business card read: “Chief Hydrologic Engineer.” Knowing that he was a good hydraulics man, I could not help but to ask him how much he knew about hydrology. He responded, smiling: “Not much, but it sells better than hydraulics.” The parties’ experts did not address the difference between a hydrological connection and a hydraulic connection at trial, perhaps because it would not help resolve the issues the court needs to decide here. In any event, it appears that Colorado law treats the two terms interchangeably. But I strived here to maintain a distinction, using hydrological connection to generally refer to when water moves from one source to another, and reserving hydraulic connection for when changes to one source of water causes a reciprocal change in the rate of flow of another source of water. While I believe this convention is grounded in scientific principles, it is my own and may suffer from a lay person’s ignorance of how specialists properly use these terms. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 13 of 33 silt, clay, and cracks within the rock.”) (citing Thomas C. Winter, et al., Ground Water and Surface Water, A Single Resource, U.S. GEOLOGICAL SURVEY CIRCULAR 1139, at 6 (1999)). In turn, the authority relied on by the Supreme Court in the Park County case recognizes the hydrological principle relied on by Niccoli in this case—but discounted by Crawford—namely, that an unsaturated zone between an aquifer and an overlying stream system causes the aquifer to be hydraulically disconnected: Where the stream is disconnected from the ground-water system by an unsaturated zone, the water table may have a discernible mound below the stream (Figure 10) if the rate of recharge through the streambed and unsaturated zone is greater than the rate of lateral ground-water flow away from the water-table mound. An important feature of streams that are disconnected from ground water is that pumping of shallow ground water near the stream does not affect the flow of the stream near the pumped wells. Winter, et al., supra, at 10. Figure 10, referred to in the quote above, is a diagram of this concept: Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 14 of 33 The court finds Niccoli’s methodology and opinions as to why the Upper Laramie Aquifer is not hydraulically connected to the overlying stream systems to be reliable and supported by general principles of both hydrology and hydraulics. The Upper Laramie Aquifer underlying the Lazy D Ranch holds a significant amount of water. The water resources manager for the City of Fort Collins, Jennifer Dial, testified that the amount of groundwater being claimed by Lazy D is equal to the same amount of water which could be stored in twelve, full reservoirs the size of Horsetooth Reservoir—the primary water supply for Fort Collins. But unlike the surface water stored in Horsetooth Reservoir, the groundwater held within the Upper Laramie Aquifer underneath the Lazy D Ranch is located nearly a thousand feet (or more) underground within thick, interbedded sandstone and siltstone layers. See Exhibit LD-47. In the central and northern parts of the Lazy D Ranch, the groundwater in the Upper Laramie Aquifer is confined by the Brule Clay Member of the White River Group. See Exhibit LD-48. While groundwater held in the sandstone formations in some locations towards the most southerly portions of the Ranch may be unconfined, even in these locations the water is held within interbedded sandstone layers under locally confining conditions created by interbedded claystone and shale layers located between and above the siltstone and sandstone layers. These locally confining conditions create the artesian pressure found within wells that have been drilled into the Upper Laramie Aquifer. This artesian pressure causes groundwater in the wells to rise to a higher elevation from where water was first found in the well when it is drilled—a classic sign of a confined aquifer. A conceptual diagram illustrating this concept is contained in Exhibit LD-143: Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 15 of 33 E. Lack of Hydr aulic Connection The court finds, based on clear and convincing evidence, that no hydraulic connection exists between the Upper Laramie Aquifer and the overlying surface stream systems because unsaturated material separates the two. Even though surface stream flows contribute recharge to the Upper Laramie Aquifer, as explained in more detail below, withdrawals from the aquifer will not cause depletions to any surface stream flow. The State Engineer’s Office issued its Determination of Facts on March 31, 2021. The court has duly considered the State Engineer’s Determination as provided by § 37-92-305(6)(b), C.R.S. 2023. The State Engineer also determined that the groundwater in the Upper Laramie Aquifer underlying Lazy D Ranch is nontributary. Determination at 7. This determination created a rebuttable presumption that the State Engineer’s findings of fact are true. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 16 of 33 But even in the absence of this presumption, the court is persuaded by Niccoli’s extensive investigation of the Upper Laramie Aquifer that it is not hydraulically connected to the overlying surface streams that flow on or nearby the Lazy D Ranch. Niccoli considered the available data and information as to the Upper Laramie Aquifer’s geologic setting, existence of other relevant water- bearing formations, connection to other aquifers, connection to tributary steam systems, and the source and current usage of water from the aquifer. Niccoli analyzed data from boreholes, water and oil well logs, measurements of spring and seep flows, climatological records, recharge data and estimates, geochemical and geotechnical samples, geologic mapping, aquifer hydraulic tests, and geophysical logs. In addition to analyzing around a hundred completed wells as part of formulating his opinions, Niccoli reviewed the available data from well logs for over a thousand wells in Colorado and Wyoming. Niccoli also had seven additional boreholes drilled into the Upper Laramie Aquifer underlying the Lazy D Ranch to obtain data specific to its geology and hydrology. Niccoli analyzed published information about the Cheyenne Basin and the Laramie formation from a number of sources, including the Colorado Division of Water Resources, the University of Wyoming, the Nebraska Geological Survey, the Colorado Geological Survey, Colorado State University , and the United States Geological Survey. Niccoli considered the data developed in connection with another application involving the Upper Laramie Aquifer filed by the Terry Grazing Association property, which borders the Lazy D Ranch. Niccoli developed a conceptual site model of the Upper Laramie Aquifer, which was admitted into evidence as Exhibit LD-33. Niccoli’s model focuses on the stratigraphic and physical position, as well as the aquifer characteristics, of Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 17 of 33 the Upper Laramie Aquifer. As already noted, Niccoli determined that the groundwater in the Upper Laramie Aquifer is nontributary because it is physically separated by impermeable strata and hydraulically separated by unsaturated material between the groundwater in the aquifer and the overlying surface streams. It is also separated from underlying aquifers by the Laramie shale interval. Niccoli relied on well bore data that shows the location where water was first found in wells drilled in the Upper Laramie Aquifer and shows that these initial water levels rose after well completion. This evidence is clear and convincing proof that the groundwater in the Upper Laramie Aquifer is under artesian pressure as a result of being contained within confining layers. These confining layers mean that the groundwater in the Upper Laramie Aquifer is hydraulically disconnected from other water sources because water does not move easily, if at all, through the confining layers. There is no dispute between the parties that groundwater in the Upper Laramie Aquifer is physically separated from the South Platte River and Cache la Poudre River and their associated alluvium by the geological uplift known as the Greeley Arch. Thus, both Crawford and Niccoli focused their analysis on investigating whether the water in the Upper Laramie Aquifer is hydraulically connected to the creeks nearby the Lazy D Ranch and their associated alluvium. Both Niccoli and Crawford focused their analysis and testimony at trial on the relationship between the Upper Laramie Aquifer and Spring Creek and, to a lesser extent, Lone Tree Creek. Both experts focused on Niccoli’s analysis of the wells and creeks that flow over where the Laramie formation outcrops, both within and outside the Lazy D Ranch’s boundaries. Niccoli compiled information about the geologic Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 18 of 33 material in the vicinity of these creeks, their alluvial systems, and the wells to develop numerous “cross-sections” to evaluate and compare the point at which water was first encountered in the Upper Laramie Aquifer, which was consistently below the bottom of the alluvium for each major drainage system in the outcrop area. Niccoli used these cross-sections to explain and illustrate his conceptual site model. One example is from Exhibit LD-48: The area where this cross-section intersects with the Lazy D Ranch is shown on the far right and is represented by the purple line labelled, “The D,” in the upper right-hand corner. While this diagram oversimplifies the composition of the Laramie formation (it doesn’t show the middle shale interval, for example), it illustrates how the outcrop creates the conditions for precipitation recharge and how the Greeley Arch forms a physical barrier with the major river alluvial systems to the south. The Pierre Shale layer, which was formed under marine conditions, is widely known to be a confining unit for aquifers located above it. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 19 of 33 See, e.g., Paschke, Suzanne, ed., Groundwater Availability of the Denver Basin Aquifer System, Colorado, U.S. GEOLOGICAL SURVEY PROFESSIONAL PAPER 1770 at 17 (2011) (“The Late Cretaceous Pierre Shale, a marine shale about 5,200 ft thick, is the uppermost Cretaceous shale in the Denver Basin (Scott, 1963b; Weimer, 1973) and is considered the base of the Denver Basin aquifer system because of its low permeability and great thickness (Romero, 1976).”). The primary disagreement between the experts at trial focused on the point where groundwater was found in various well logs in relation to the elevation of the alluvium associated with the Spring Creek and Lone Tree Creek systems. Niccoli summarized his analysis in Exhibit LD-105 and testified in great detail at trial. The dispute between Niccoli and Crawford revolves around (1) whether the point at which groundwater was first encountered by the well driller when a well was drilled is indicative of the location where groundwater existed and (2) the extent to which the geologic material between the underlying Upper Laramie Aquifer and the overlying stream and alluvial systems was saturated such that it would create a hydraulic connection. As summarized in Exhibit LD-105, groundwater was first encountered within all the wells drilled into the Upper Laramie Aquifer at a level below the bottom of the alluvium of both the Lone Tree Creek system and Spring Creek system. Crawford relied on much the same information that is summarized in Exhibit LD-105, but instead focused on the “static water level” in certain wells. Static water level refers to the distance from the land surface to where water in the well sits under non-pumping (static) conditions after the well has been completed. Crawford noted that in some of the wells that Niccoli investigated the static water level was higher than the bottom of the Spring Creek and Lone Tree Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 20 of 33 Creek alluvial systems. Crawford opined that this static water level, which he also referred to as the potentiometric head, represents the level at which groundwater exists within the Upper Laramie Aquifer. This opinion forms the basis of Crawford’s ultimate opinion that the Upper Laramie Aquifer is hydraulically connected with the Spring Creek and Lone Tree Creek systems. But the court is not persuaded. The court instead finds Niccoli’s opinions about the relationship of the water levels observed in the wells and the Upper Laramie Aquifer to be more reliable and better supported, and therefore more credible. Crawford conceded in his testimony that he was using static water level and potentiometric surface “interchangeably,” yet he acknowledged: Static water level is typically reserved for a water table aquifer, where the term “potentiometric surface” is reserved for an artesian well where that water level is above the top of the aquifer. So right here, that’s technically a potentiometric surface, but like I said, it’s used interchangeably. Trial Transcript, Vol. 4, at 112: 15-21. But this distinction is significant here. A potentiometric surface indicates a well under artesian conditions. An artesian well is “a well tapping an aquifer in which the static water level in the well rises above where it was first encountered in the aquifer, due to hydrostatic pressure.” § 37-90-103, C.R.S. 2023; see also Danielson v. Castle Meadows, Inc., 791 P.2d 1106, 1111 n.5 (Colo. 1990) (“The hydrostatic pressure level of an aquifer at a particular location is the height to which water will rise in a well at that location. If the hydrostatic pressure level is at the top of the aquifer or below, the aquifer is not under artesian conditions.”); American Water Development, Inc. v. City of Alamosa, 874 Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 21 of 33 P.2d 352, 367 (Colo. 1994) (“The artesian condition results from a recharge of the confined aquifer by waters entering the aquifer at higher elevations at the edges of the [San Luis] Valley and the limited permeability of the blue clays separating the two aquifers [the unconfined and the confined aquifers].”). Niccoli testified about numerous wells he analyzed where water was first encountered at a lower depth than where the water ultimately rose to after the well was completed and tightly cased. Crawford’s recognition that the static water levels involved in this case are potentiometric surfaces in artesian wells, coupled with his concession that the Upper Laramie Aquifer is generally a confined aquifer, contradicts his opinion that the static water levels represent the groundwater level in the aquifer. While there are likely areas where the Upper Laramie Aquifer is not under confined conditions, Crawford did not present convincing testimony that the aquifer is unconfined where it exists under the Lazy D Ranch or the alluvial stream systems he relies on to support his opinions. More convincing is Niccoli’s analysis of the static water levels and his opinion that the difference between where water was first encountered and the static water level after well completion is best explained by artesian pressure. The court finds credible Niccoli’s explanation that the artesian pressure is caused by the gravitational forces from the slope in the upper Laramie formation, coupled with the interbedded claystones and shale deposits existing within the Upper Laramie Aquifer. When the claystones and shale layers are punctured by drilling a well, the water is no longer confined by the relatively impermeable clay and shale layers and can now move vertically upward into the well to the potentiometric surface observed as the static water level. But these same interbedded claystone and shale confining layers separate the Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 22 of 33 groundwater in the Upper Laramie Aquifer from the overlying stream systems, resulting in hydraulic separation rather than connection. And where the stream systems overlie the White River formation, they are physically separated from the Upper Laramie Aquifer by the poorly permeable Brule Clay layer. Crawford’s criticism of Niccoli’s methodology relies heavily on well permit No. 287480 (Exhibit S/FC-56). Crawford opined that Niccoli incorrectly determined the boundary of the Upper Laramie Aquifer and pointed to information in well permit no. 287480 that indicates water was found near the surface as evidence that the Upper Laramie Aquifer is hydraulically connected to the Spring Creek alluvial system. In the geologic log section of the form, the well driller placed an “x” in the water location column in the range designated as 0-74 feet and described the material in that stratum as “sand clay.” But the court is also unpersuaded by this criticism. Niccoli testified as to the numerous wells and publicly available information he used to determine the aerial extent of the ULA. Niccoli further explained that geologic boundaries are not uniform and cautioned that straight line delineations used to show the extent of any geologic formation can only ever be an approximation. Niccoli testified how he analyzed wells on both sides of the boundary he estimated to mark the Upper Laramie Aquifer and how that the evidence consistently showed that Spring Creek is not hydraulically connected. Niccoli also credibly explained that well permit no. 287480 was not drilled into the Upper Laramie Aquifer and that the water found near the surface in drilling no. 287480 was most likely alluvial water perched on a shale layer. A perched aquifer is depicted in the diagram from Exhibit LD-143, shown on page 15 above. Perched groundwater is unconfined groundwater separated from an underlying body of confined groundwater by an unsaturated zone. It occurs Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 23 of 33 when subsurface water percolating downward is held by a bed or lens of low- permeability material. This condition often leads to the formation of a spring—a point where groundwater discharges naturally from the land surface—and can be ephemeral, intermittent, or perennial. Some geological feature in the Spring Creek alluvium causes groundwater to discharge and remain near the surface—rather than seep deeper underground like precipitation does outside the boundaries of the Spring Creek system. The well driller indicates in the geologic log for permit no. 287480 that the material where water was found at the surface between 0 to 74 feet is “sand clay”—which appears to describe an alluvial stratum of interbedded sand and clay—whereas, the material underneath that stratum is described as medium- grain, grey shale—a known confining material—where no water was found in the range of 74 to 347 feet, a distance of 273 feet. Crawford testified that he is familiar with well no. 287480 and the surrounding area from drilling other wells on the south side of Spring Creek. Crawford further testified that the alluvial material on the north side of Spring Creek extends as deep as 50 feet underground, whereas on the south side bedrock was encountered at depths of 9 and 15 feet. Crawford then insisted that the driller’s indication in the geologic log for well no. 287480 that water was found between 0 – 74 feet means that groundwater exists under the shallow bedrock encountered at 15 feet in this area of the Spring Creek alluvium—and so this groundwater must come from the Upper Laramie Aquifer and be in hydraulic connection with Spring Creek. But Crawford’s testimony is unpersuasive for a several reasons. First, the geologic log does not indicate where in the range of 0 – 74 feet water was found. The log entry could simply indicate that groundwater was encountered Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 24 of 33 between 0 and 15 feet as opposed to a lower depth. Or it could indicate that water was found throughout the stratum located at 0 -74 feet. The geologic log is unclear about this point. Second, the log fails to show that bedrock was encountered somewhere between 9 and 15 feet, contradicting Crawford’s testimony about the geologic conditions in this area. Instead, the log indicates that a stratum of “sand clay” at was found between 0 – 74 feet. The well driller likely would have made a notation if bedrock had been encountered in this stratum. Third, even if the court was convinced that bedrock exists in this area somewhere between 9 and 15 feet, it is just as likely that this bedrock would be a confining layer capable of creating a hydraulic disconnection between the Spring Creek alluvium and the confined aquifers below it. Fourth, and perhaps most significantly, the court is simply not persuaded that the Upper Laramie Aquifer exists at a shallow depth in this area around Spring Creek. The geologic log indicates that water was again detected between 347 and 359 feet in a sandstone stratum, yet the well was completed with screened perforations between 360 and 440 feet where a hard, black shale was encountered. The groundwater therefore enters well no. 287480 somewhere between 360 feet and 440 feet underground, and it most likely enters nearer to 360 feet, which is at the bottom of the sandstone stratum where water was detected by the well driller. Because the well is cased above 360 feet, and because the groundwater enters the well below that level, it is hydrostatic pressure that pushes the groundwater to the potentiometric surface observed at 124 feet below ground level. Because no water was detected by well driller in the shale layer stratum located between 74 – 347 feet, and because a shale layer was found below 360 feet, a confined aquifer condition must exist in the Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 25 of 33 sandstone layer found between 347 feet and 360 feet, which accounts for the artesian conditions observed in well no. 287480. The point is that, whether the confined aquifer in which well no. 287480 is completed is located in the Upper Laramie formation or is instead located in the Fox Hills formation, the groundwater is still confined below a shale confining layer, 273-feet thick, that separates this groundwater from any hydraulic connection to the alluvial groundwater found in the 0 – 74 feet stratum. And because the static water level of this well is at 124 feet—50 feet below the bottom of the alluvial material in the 0 – 74 feet stratum—even if the court was persuaded that groundwater from the deep confined aquifer existed naturally at the 124 feet elevation—it would still hydraulically disconnected from the overlying alluvial stratum by 50 feet of unsaturated material. The court instead finds, based on clear and convincing evidence, that the only groundwater existing at the depth of 124 feet in this area is the groundwater inside the casing of well no. 287480—which is there because of hydrostatic pressure. Otherwise, the shale stratum surrounding the well casing does not contain groundwater in hydraulic connection with the overlying alluvial stratum. Considering the proximity of well no. 287480 to Spring Creek, it’s not surprising that the well driller discovered groundwater in the 0-74 feet range. The most logical explanation for this observation is a perched condition created by the shale stratum that begins around 74 feet. This perched condition is consistent with other shallow groundwater found near Spring Creek , where alluvial groundwater is perched along various outcroppings of the Brule Clay formation located in that area. Niccoli noted that this area of Spring Creek is a recharge boundary and that water from Spring Creek and its alluvium must Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 26 of 33 necessarily flow downward into the Upper Laramie Aquifer as a source of recharge. But because the Upper Laramie Aquifer is located at a much lower elevation and is separated from any overlying alluvium by unsaturated material, the rate of this recharge is unaffected by withdrawals from the Upper Laramie Aquifer underlying the property owned by the Lazy D Ranch. The closest parcel of the Ranch is 3.5 miles aways from Spring Creek and the bulk of the Ranch is a much further distance. The court finds by clear and convincing evidence that the static water levels of the wells investigated by Niccoli are potentiometric surfaces and therefore measure the hydrostatic pressure generated by the wells’ open, screened interval.3 The great weight of the evidence is that the surrounding geologic material at the same elevation as the static water levels observed in these well is not saturated to a level that would create a hydraulic connection to any overlying stream alluvial system. All the well log information—the most pertinent examples are summarized in Exhibit LD-105—proves that water was first encountered by the well drillers below both the static water level and the alluvium of Spring Creek, Lone Tree Creek, Owl Creek, and all other drainages analyzed by Niccoli. In analyzing Exhibit LD-105, the court has examined the potentiometric surfaces summarized in the exhibit and notes that these surfaces demonstrate the classic pattern of a confined aquifer` (as shown in the conceptual drawing 3 There are some shallow wells completed in the Spring Creek alluvium that are not under artesian conditions and their static water levels are not under hydrostatic pressure. Niccoli did not rely on these wells to support his opinions as to the Upper Laramie Aquifer, other than to explain hydrological and hydraulic principles and differentiate these wells from the artesian wells that he relied on. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 27 of 33 from Exhibit LD-143 on page 15 above). The court has added black arrows to page 12 of Exhibit LD-105 to emphasize this pattern and relationship: After considering the totality of the evidence, the court finds by clear and convincing that the groundwater in the Upper Laramie Aquifer is physically and hydraulically separated from the water in the overlying surface stream systems and their alluvium. The court is unpersuaded by Crawford’s position that the potentiometric head of the surrounding wells represents the potential level at which water might exist within the Upper Laramie Aquifer in the absence of confining layers and other geologic and stratigraphic features. Instead, the great weight of the evidence shows that these wells were drilled through confining layers; that groundwater was first found at lower level than where it eventually rose to a static water level; and that these are artesian wells under hydrostatic conditions. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 28 of 33 While the court’s findings have been made independent of the State Engineer’s Determination of Facts submitted under by § 37-92-305(6)(b), the court notes that its findings are consistent with those facts. The court finds that the opposers have not rebutted the presumption that the Engineer’s findings of fact are true. The court also notes that the groundwater in the Upper Laramie Aquifer underlying the Terry Grazing Association Ranch, which is located adjacent to the western boundary of the Lazy D Ranch, was previously determined by this court as nontributary—by stipulation—in the decree entered in case no. 2011CW275. While these prior findings are not conclusive as to the nontributary nature of the groundwater in the Upper Laramie Aquifer underlying the Lazy D Ranch—and have no preclusive effect—the court’s findings here are certainly consistent with these prior findings. 2. Conclusions of Law The ultimate question the court must answer is whether withdrawals from the Upper Laramie Aquifer underlying the Lazy D Ranch will cause depletions in the stream flow of surface waters. See Dist. 10 Water Users Ass’n v. Barnett, 599 P.2d 894, 895 (Colo. 1979) (“We hold that the issue before the trial court must embrace that question, i.e., Did the pumping affect the stream flow?”). This court has jurisdiction over this proceeding under § 37-90-137(6), C.R.S. 2023. The nature and extent of the rights to nontributary groundwater determined by the court are defined by § 37-90-137(4). The application was published in the resume for Water Division No. 1. The Lazy D Grazing Association is the owner of the overlying land associated with the application, the Lazy D Ranch, and there are no others with a recorded Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 29 of 33 interest in the overlying land. All notice requirements imposed by § 37-92- 302(2), C.R.S. 2023, have been satisfied. This court has exclusive jurisdiction over the Lazy D’s nontributary claims as to the groundwater that is the subject of its application (which is located outside of a designated groundwater basin), under § 37-92-203(1), C.R.S. 2023. The statute explicitly includes any determination as to the right to use water, including “determinations of rights to nontributary groundwater” within the water court’s jurisdiction. Id.; see also Archuleta v. Gomez, 140 P.3d 281, 284−85 (Colo. App. 2006) (summarizing case law). A determination that groundwater is nontributary is a “water matter” that affects the right to use both the water claimed as nontributary and all potentially affected water rights. §§ 37-92-103(12), -203(1), C.R.S. 2023. Water matters are special statutory proceedings governed by the water court rules and statutes. See E. Cherry Creek Valley Water & Sanitation Dist. v. Greeley Irrigation Co., 348 P.3d 434, 440 n.5 (Colo. 2015) (citing C.R.C.P. 81(a)); City & County of Broomfield v. Farmers Reservoir & Irrigation Co., 239 P.3d 1270, 1275 n.4 (Colo. 2010) (citing C.R.C.P. 81(a) and Cornelius v. River Ridge Ranch Landowners Ass’n, 202 P.3d 564, 569 (Colo. 2009)). Nontributary groundwater is defined under § 37-90-103(10.5), C.R.S. 2023, as: groundwater, located outside the boundaries of any designated groundwater basins in existence on January 1, 1985, the withdrawal of which will not, within one hundred years of continuous withdrawal, deplete the flow of a natural stream, including a natural stream as defined in sections 37-82-101(2) and 37-92-102(1)(b), at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 30 of 33 The “flow of a natural stream,” for the purpose of determining whether groundwater is nontributary, is not limited to the surface flow of streams, but instead includes the underflow and tributary waters of natural streams described in §§ 37-82-101(2) and 37-92-102(1)(b), C.R.S. 2023. See Am. Water Dev., Inc. v. City of Alamosa, 874 P.2d 352, 371−72 (Colo. 1994); see also § 37-92-103(11), C.R.S. 2023 (“‘Underground water’, as applied in this article for the purpose of defining the waters of a natural stream, means that water in the unconsolidated alluvial aquifer of sand, gravel, and other sedimentary materials and all other waters hydraulically connected thereto which can influence the rate or direction of movement of the water in that alluvial aquifer or natural stream.”). Natural streams thus include perennial, ephemeral, and intermittent natural streams and their underflow (what the court has referred to as “alluvium”) and tributary waters. §§ 37-82-101(2), 37-92-102(1)(b), 37-92- 103(11), C.R.S. 2023. “Those acquainted with the arid region know that some of the most important and well-defined streams become almost, and sometimes entirely, dry during a portion of the year ….” Platte Valley Irrigation Co. v. Buckers Irrigation, Milling & Improvement Co., 53 P. 334, 336 (Colo. 1898). “It is a well-known fact that some streams in this state, after running for less or greater distances on the surface, sink, and by a well-defined subterranean channel flow for a number of miles, and then come to the surface again.” La Jara Creamery & Live Stock Ass’n v. Hansen, 83 P. 644, 645 (Colo. 1905) (citation omitted). See also Giffen v. State, City & County of Denver Acting By & Through Bd. of Water Comm’rs, 690 P.2d 1244, 1247 (Colo. 1984) (water intercepted before reaching an aquifer and precipitation intercepted before reaching the ground are part of and tributary to the natural stream). Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 31 of 33 Thus, any determination whether groundwater is nontributary must necessarily take into consideration all natural streams that may be affected, including ephemeral and intermittent streams, their alluvium, and their tributary waters. This case involves two competing presumptions. First, all groundwater in Colorado “is presumed to be tributary absent clear and convincing evidence to the contrary.” Colo. Ground Water Comm’n v. N. Kiowa-Bijou Groundwater Mgmt. Dist., 77 P.3d 62, 70 (Colo. 2003). Second, under § 37-92-305(6)(b), the State Engineer’s determination of facts creates a rebuttable presumption that those facts are true. To harmonize these competing presumptions, the court concludes that the State Engineer’s Determination of Facts, in which the State Engineer found that the groundwater in the Upper Laramie Aquifer is nontributary, is sufficient to shift the initial burden of going forward with evidence to the opposers to rebut those presumed facts. But the ultimate burden of proof remains on the applicant, the Lazy D Grazing Association, to establish that the claimed groundwater is nontributary by clear and convincing evidence. “Proof by ‘clear and convincing evidence’ is proof which persuades the trier of fact that the truth of the contention is ‘highly probable.’ It is evidence which is stronger than a ‘preponderance of the evidence.’” People v. Taylor, 618 P.2d 1127, 1136 (Colo. 1980) (citations omitted). Colorado courts have defined “‘clear and convincing evidence’ as being ‘evidence which is stronger than a preponderance of the evidence and which is unmistakable and free from serious or substantial doubt.’” Dahman v. Ford Leasing Dev. Co., 492 P.2d 875, 877 (Colo. App. 1971). The court has made the finding here that the opposers did not rebut the State Engineer’s Determination of Facts, which found the subject groundwater is Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 32 of 33 nontributary. The court has further made the finding that Lazy D has proved by clear and convincing evidence, independent of the State Engineer’s determination of facts, that the subject groundwater is nontributary because withdrawals from the Upper Laramie Aquifer underlying the Lazy D Ranch will not cause depletions in the flow of any surface stream or its alluvium. Thus, Lazy D has met its burden to prove by clear and convincing evidence that any wells on the Lazy D Ranch withdrawing groundwater from the Upper Laramie Aquifer will not, within 100 years of continuous withdrawal, deplete the flows of a natural stream as defined in § 37-82-101(2) and § 37-92-102(1)(b) at an annual rate greater than one-tenth of one-percent of the annual rate of withdrawal. Lazy D is therefore entitled to a decree for all nontributary groundwater within the Upper Laramie Aquifer underlying its property. Per the stipulation with the State Engineer, Lazy D may withdraw up to 19,446-acre feet of this nontributary groundwater annually from the Upper Laramie Aquifer, with a total volumetric limit on withdrawals of 1,944,591-acre feet (which is based on a 100-year aquifer life). These numbers are subject to adjustment in the future as provided by law under § 37-92-305(11), C.R.S. 2023. 3. Order The application to confirm Lazy D’s right to withdraw and use all groundwater from the nontributary Upper Laramie Aquifer underlying the Lazy D Ranch, under § 37-90-137(4), satisfies the requirements of law and is hereby GRANTED. The initial volume of nontributary groundwater in the Upper Laramie Aquifer underlying the Lazy D Ranch is determined to be 1,944,591-acre feet with an annual rate of withdrawal of 19,446-acre feet, subject to adjustment as provided by § 37-92-305(11). Findings of Fact and Conclusions of Law Application for Water Rights of Lazy D Grazing Association, 2020 CW 3113 Page 33 of 33 Lazy D is ordered to tender a final decree for approval by this court, in a form substantially similar to the proposed decree that was offered and admitted into evidence as Exhibit LD-1, within 14 days of the date of this Order. So Ordered: August 18, 2023 BY THE COURT: ______________________ Todd Taylor Water Judge Water Division 1 1 District Court, Water Division No. 1, State of Colorado Weld County Courthouse 901 9th Avenue P.O. Box 2038 Greeley, Colorado 80632 COURT USE ONLY _____________________________ 20CW3113 CONCERNING THE APPLICATION FOR WATER RIGHTS OF LAZY D GRAZING ASSOCIATION, IN WELD COUNTY FINDINGS OF FACT, CO NCLUSIONS OF LAW, AND DECREE OF THE WA TER COURT THIS MATTER has come before the Court upon the application of Lazy D Grazing Association, (“Applicant”) for a determination of nontributary groundwater rights in the Upper Laramie aquifer underlying Applicant’s property in Weld County. The Court, having considered the pleadings evidence and arguments presented, and being fully advised in the premises, hereby enters the following Findings of Fact, Conclusions of Law, and Decree of the Water Court: FINDINGS OF FACT 1.Name, Address and Telephone Number of Applicant. Lazy D Grazing Association (“Lazy D”) 12609 WCR 120 Carr, CO 80612 Telephone: 970-381-2466 2.Application. Applicant filed its Application for Nontributary Underground Water Rights from the Upper Laramie Aquifer on July 31, 2020 (“Original Application”). Applicant filed its Amended Application for Nontributary Underground Water Rights from the Upper Laramie Aquifer on November 30, 2020 (“Amended Application” which together with the Original Application will be referred to as the “Application”). 3.Summary of the Application. Applicant is a Colorado nonprofit corporation formed in 1965. Lazy D owns over 24,000 acres of land, more or less, in northern Weld County which are the subject of this Application (“Applicant’s Property”). A map depicting Applicant’s Property is attached as Figure 1. Applicant’s Property consists of two non-contiguous parcels. Parcel A consists of approximately 23,111 acres (“Parcel A Property”). The legal description for the Parcel A Property is included in the attached Exhibit 1. Parcel B consists DATE FILED: September 6, 2023 2:09 PM CASE NUMBER: 2020CW3113 APPENDIX B TO NOTICE OF APPEAL FROM CASE NO. 20CW3113 (WATER DIVISON 1) DATE FILED: October 4, 2023 2:52 PM FILING ID: DD0BFED1513BE CASE NUMBER: 2023SA258 2 of approximately 1,600 acres (“Parcel B Property”). The legal description for the Parcel B Property is included in the attached Exhibit 2. In the Original Application, Applicant sought a determination of rights to nontributary groundwater located in the Upper Laramie aquifer underlying Parcel A and Parcel B. Subsequent to filing the Original Application, Applicant acquired an additional 624 acre of lands, more or less, contiguous to Parcel A, and the purpose of the Amended Application was to include a claim for determination of rights to nontributary groundwater in the Upper Laramie aquifer underlying this additional land. 4. Notice. All notices of the Application and the claims therein required by laws have been fulfilled and the Court has jurisdiction over the subject matter of this Application and over all persons and property affected by it, irrespective of whether they or its owners have appeared. No part of Applicant’s Property which is the subject of the Application lies within a designated groundwater basin. 5. Statements of Opposition. Timely statements of opposition were filed in this case by the parties (“Objectors”) listed below. The time period for filing such statements of opposition or motions to intervene in this matter has expired. 5.1. Basin Lands, LLC. 5.2. Bijou Irrigation Company. 5.3. Bijou Irrigation District. 5.4. Cache La Poudre Water Users Association. 5.5. City of Boulder. 5.6. City of Englewood. 5.7. City of Fort Collins. 5.8. City of Greeley, acting by and through its Water and Sewer Board. 5.9. City of Sterling. 5.10. City of Thornton. 5.11. L.G. Everist, Inc. 5.12. Northern Colorado Water Conservancy District. 5.13. Mary Estabrook. 5.14. State Engineer and Division Engineer for Water Division No. 1. 3 5.15. United Water and Sanitation District. 6. Stipulations. Applicant has entered into stipulations with the following Objectors, who have consented to the entry of this ruling and decree. Said stipulations were approved as orders of the Court on the dates set forth below: 6.1. Basin Lands, LLC, February 9, 2023. 6.2. City of Boulder, April 6, 2022. 6.3. City of Englewood, April 1, 2022. 6.4. City of Greeley, acting by and through its Water and Sewer Board, March 24, 2023. 6.5. City of Thornton, October 28, 2022. 6.6. L.G. Everist, Inc., February 23, 2023. 6.7. Northern Colorado Water Conservancy District, April 12, 2022. 6.8. State Engineer and Division Engineer for Water Division No. 1, November 15, 2022. 6.9. United Water and Sanitation District, October 31, 2022. 7. Summary of Consultation. The Water Referee entered an Order Waiving the Consultation Requirement in this Application on October 12, 2020 because the State Engineer and the Division Engineer for Water Division No. 1 (together, the “Engineers”) filed a statement of opposition and are parties to the case. 8. State Engineer’s Determination of Facts. The State Engineer reviewed Applicant’s Expert Summary Engineering Report and Conceptual Site Model, and upon reviewing said information found that withdrawal of groundwater from the Upper Laramie aquifer underlying the Applicant’s Property will not, within one hundred years of continuous withdrawal, deplete the flow of a natural stream at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal and therefore the groundwater is nontributary as defined in Section 37-90-103(10.5), C.R.S. The State Engineer issued its Determination of Facts on March 31, 2021. 9. Trial and Order. All parties stipulated in this matter except the Bijou Irrigation Company, the Bijou Irrigation District, Mary Estabrook, the Cache la Poudre Water Users Association, the City of Fort Collins and the City of Sterling. A 5-day bench trial was held on April 10-12, 2023, and then April 24-25, 2023. Mary Estabrook failed to prosecute her statement of opposition and did not participate in the trial. The Bijou Irrigation Company and the Bijou Irrigation also did not participate in trial. The Cache la Poudre Water Users Association, the City of Fort Collins and the City of Sterling participated at trial of this Application before the Court. The Cache la Poudre Water Users Association participation 4 was limited to filing a trial brief and making an opening statement. On August 18, 2023, this court entered its Findings of Fact and Conclusions of Law (hereinafter referred to as the “Order”). The Order is incorporated into this Decree by this reference. GROUNDWATER RIGHTS 10. Aquifer and Location of Groundwater. Applicant seeks a decree for vested rights to nontributary groundwater in the Upper Laramie aquifer underlying Applicant’s Property. Applicant is the owner of the Applicant’s Property. Such nontributary groundwater rights and wells will be subject to the Statewide Nontributary Ground Water Rules (2 C.C.R. § 402-7, et seq.), including any future amendments or replacement rules to the extent not inconsistent with this Decree (the “Rules”). References to specific sections of the Rules herein shall be deemed to refer to the corresponding replacement Rule in the event that the Rules are renumbered. 11. Well Locations, Pumping Rates and Annual Withdrawal Amounts. Existing wells on the Applicant’s Property which may be used to withdraw the groundwater rights decreed herein are described in 11.1 below (“Existing Wells”). Additionally, Applicant may withdraw such groundwater rights through any number of future wells located on the Applicant’s Property capable of withdrawing water from the Upper Laramie aquifer underlying said Property (“Future Wells”), pursuant to § 37-90-137(10), C.R.S. The Existing Wells and the Future Wells shall be referred to collectively as the “Wells.” Applicant’s groundwater rights in the Upper Laramie aquifer decreed herein may be withdrawn at rates of flow necessary to withdraw the amounts decreed herein. The following average annual amount is available for withdrawal, as determined in accordance with The Rules: Applicant’s Property Acreage Weighted Average Specific Yield (%) Average Saturated Thickness (feet) Average Annual Withdrawal (AF/yr) See Exhibits 1 and 2 24,711 (non-contiguous) 15 525 19,446 11.1. Existing Wells on Applicant’s Property Completed Entirely in the Upper Laramie Aquifer: 11.1.1. Well Permit No. 294372 11.1.1.1. Location: SW ¼ SW ¼ of Section 2, Township 11 North, Range 66 West of the 6th P.M. in Weld County, Colorado. 11.1.2. Well Permit No. 306208 5 11.1.2.1. Location: NW ¼ SE ¼ of Section 31, Township 12 North, Range 66 West of the 6th P.M. in Weld County, Colorado. 12. Final Average Annual Amount of Withdrawal. Final determination of the applicable average saturated thicknesses and resulting average annual amount available to Applicant from the Upper Laramie aquifer will be made pursuant to the retained jurisdiction of this court, as described below in this Ruling and Decree. In the event this Decree is not reopened for a further quantitative determination, and no petition to invoke retained jurisdiction is filed within the amount of time allowed under paragraph 32.3 below, then the findings herein are final and controlling. 13. Proposed Uses. Proposed use of groundwater includes but is not limited to agricultural, domestic, municipal, stock watering, industrial, and augmentation. Water withdrawn pursuant to this Decree may be stored, used and reused to extinction by Applicant or others to whom Applicant may sell, lease, assign or otherwise provide the water. 14. Noncontiguous Parcels. Applicant’s Property consists of two noncontiguous parcels described above as Parcel A and Parcel B. Pursuant to 2 C.C.R. § 402-7(11)(B), Applicant may withdraw the total allowed annual amount of withdrawal from one or more Wells, provided that the Well or Wells are located so that the cylinder or cylinders of appropriation, as that term is defined in 2 C.C.R. § 402-7(4)(A)(7), for at least one of the Well or Wells overlap, at least in part, each Parcel A and Parcel B. In determining the cylinder of appropriation, the acreage from the noncontiguous parcels shall be included in the calculation. 15. Annual Banking of Unused Amounts. 15.1. Withdrawal Amounts May Exceed Average Annual Amount. The allowed annual amount of groundwater which may be withdrawn from the Upper Laramie aquifer through the Wells may exceed the average annual amount of withdrawal decreed herein for that aquifer. 15.2. Formula for Excess Withdrawals. Pursuant to 2 C.C.R. § 402-7(8)(A), in order to exceed the annual amount of withdrawal, the total volume of water actually withdrawn from the Upper Laramie aquifer through the Wells may not exceed the product of the number of years since the date of the issuance of the well permits or the date of this Decree, whichever is earliest in time, multiplied by the average annual amount of withdrawal for that aquifer, as specified above or as subsequently determined pursuant to the Court's retained jurisdiction. 16. Nontributary Groundwater. The groundwater to be withdrawn under this Decree is "nontributary groundwater" as defined in § 37-90-103(10.5), C.R.S., the withdrawal of which will not, within 100 years of continuous withdrawal, deplete the flow of a natural stream, including a natural stream as defined in §§ 37-82-101(2) and 37-92-102(1)(b), 6 C.R.S., at an annual rate greater than one-tenth of one percent of the annual rate of withdrawal. 17. Aquifer Life. Withdrawals of nontributary groundwater hereunder are allowed on the basis of an aquifer life of 100 years, exclusive of artificial recharge. 18. Finding of No Injury. The vested water rights of others will not be materially injured by the withdrawal of groundwater, so long as such withdrawals are made pursuant to the terms of this Decree. Further, no material injury to vested water rights of others will result from the issuance of permits for wells or the exercise of the groundwater rights decreed herein provided such permits are issued and such groundwater rights are exercised in accordance with the terms and limitations specified in this Decree. 19. Well Locations. Applicant proposes to construct wells as required by demands over time. Wells may be constructed pursuant to this Decree at any location on Applicant's Property, pursuant to well permits to be issued pursuant to § 37 -90-137(10), C.R.S. Applicant waives any 600-foot spacing rule for Wells located on Applicant’s Property, but must satisfy C.R.S. § 37-90-137(2) for wells owned by others on adjacent properties. 20. Future Wells. In addition to the Existing Wells, Applicant may construct additional and replacement wells on Applicant's Property (Future Wells) in order to maintain levels of production, to meet water demands, or to recover the entire amount of groundwater in the Upper Laramie aquifer underlying Applicant's Property. Well permit applications for Future Wells shall be filed in accordance with § 37-90-137(10), C.R.S. The State Engineer shall issue well permits pursuant to the provisions of such section, the provisions of the Rules, and this Decree. 20.1. Geophysical Logs. For all Future Wells permitted in accordance with § 37-90- 137(4), C.R.S., and subsequently completed, geophysical logs will be required in accordance with 2 C.C.R. § 402-7(9). 20.2. Additional Information. For all Future Wells permitted in accordance with § 37-90- 137(4), C.R.S., and subsequently completed, Applicant shall provide the information required by 2 C.C.R. § 402-7(7)(A)-(C). 21. Well Fields. Two or more wells constructed into the Upper Laramie aquifer on Applicant’s Property shall be considered a well field, as that term is defined in 2 C.C.R. § 402- 7(4)(A)(13). In effecting production of water from such well field, Applicant may, in accordance with 2 C.C.R. § 402-7(14), produce the entire amount which may be produced from the Upper Laramie aquifer through any combination of wells within the well field. 22. Adjustment of Well Permits. Upon entry of this Decree, Applicant shall apply to the State Engineer for issuance of new well permits for the Existing Wells to conform such permits with the terms of this Decree. Additionally, in the event that the allowed average annual amounts decreed herein are adjusted pursuant to the retained jurisdiction of the Court, Applicant shall obtain new well permits prior to withdrawing such adjusted average annual 7 amounts. New permits for any Wells herein shall likewise reflect any such adjustment of the average annual amounts decreed herein. 23. Meters; Records. Wells must be equipped with totalizing flow meters to determine the flow rate and the monthly volume of water pumped from the Wells. The flow meters must be installed and maintained to provide accurate measurement and recording of diversions by the Wells and shall comply with the Well Measurement Program Standards, as such standards may be amended or supplemented in the future. Applicant or its successors shall keep accurate records of all withdrawals by the Wells, and shall report to the Division Engineer the meter readings and amount of withdrawal from the permitted Wells at least annually, or more frequently as may be reasonably required by the Division Engineer. CONCLUSIONS OF LAW 24. Jurisdiction. The Water Court has jurisdiction over this proceeding pursuant to § 37-90- 137(6), C.R.S. All Conclusions of Law set forth in the Order are incorporated herein. This Court concludes as a matter of law that the Application herein is one contemplated by law under § 37-90-137(4), C.R.S. The Application for a decree confirming Applicant's right to withdraw and use all nontributary groundwater from the Upper Laramie aquifer underlying Applicant's Property pursuant to § 37-90-137(4), C.R.S., is granted, subject to the provisions of this Decree. 25. No Injury. The nature and extent of the rights to nontributary groundwater determined herein are defined by § 37-90-137(4), C.R.S. The vested water rights of others will not be materially injured by the withdrawal of groundwater rights decreed herein, so long as such withdrawals are made pursuant to the terms of this Decree. Further, no material injury to vested water rights of others will result from the issuance of permits for wells or the exercise of the groundwater rights decreed herein provided such permits are issued and such groundwater rights are exercised in accordance with the terms and limitations specified in this Decree. 26. Vested Water Right; Inapplicability of Priority of Appropriation . The rights to nontributary groundwater determined herein shall not be administered in accordance with priority of appropriation. Such rights are not “conditional water rights" as defined by § 37- 92-103(6), C.R.S. The provisions of § 37-92-301(4), C.R.S., requiring findings of reasonable diligence are not applicable to the groundwater rights determined herein. The determination of groundwater rights herein need not include a date of initiation of the withdrawal project. See § 37-92-305(11), C.R.S. 8 DECREE OF THE WATER COURT 27. Incorporation by Reference. The Findings of Fact and Conclusions of Law set forth above and the Order are hereby incorporated into the terms of this Decree as if the same were fully set forth herein. 28. Notice. Full and adequate notice of the Application in this matter was given, and the Court has jurisdiction over the subject matter and over the parties, whether they have appeared or not. 29. Right to Withdraw Nontributary Groundwater. Applicant and/or its successor(s) may withdraw the nontributary groundwater subject to this Decree through Wells to be permitted by the State Engineer's Office at any location on Applicant's Property in the amounts and at the estimated average rates of withdrawal specified therefor, subject to the limitations herein and the retained jurisdiction of this Court. 30. Award of Vested Property Right. Applicant is awarded a vested property right to all the groundwater in the Upper Laramie aquifer underlying Applicant’s Property, and subject to adjustment under the Court’s retained jurisdiction described below, may withdraw up to 19,446 acre feet per year and no more than 1,944,591 acre feet total, exclusive of artificial recharge, of the Upper Laramie aquifer groundwater underlying Applicant’s Property. See § 37-92-305(11), C.R.S. 31. Aquifer Life. Groundwater withdrawals pursuant to this Decree are expressed in terms of a 100-year aquifer life, but such withdrawals may be extended to such longer periods with corresponding reductions in such annual withdrawals. Such groundwater may be used for all beneficial purposes listed hereinabove. 32. Retained Jurisdiction. 32.1. Amount Adjustment. The Court retains jurisdiction as necessary to adjust the amount of nontributary Upper Laramie aquifer groundwater available for withdrawal and the average annual amounts of withdrawal of the same to conform to actual local aquifer characteristics as determined from adequate geophysical and hydrologic information and testing, pursuant to § 37-92-305(11), C.R.S. and the Rules. In order to determine the saturated thickness and specific yield for purposes of adjusting the average annual amounts of nontributary Upper Laramie aquifer groundwater the following information is required: 32.1.1. Within 60 days after completion of any of the Future Wells decreed herein, or any test hole(s), Applicant or any successor in interest to the water rights decreed herein shall serve copies of the geophysical log, as required in ¶ 20.1, upon the State Engineer and all parties to this case. 9 32.1.2. The resistivity log and other acceptable geophysical data as required by the Rules, will form the basis of determination of saturated thickness in conjunction with the measured static water level and lithologic logs and/or samples. 32.1.3. Future modifications to the stipulated specific yield value used in determination of the amount of groundwater available under the Applicant's Property may be based upon laboratory analysis of a minimum of three cores, or more as required by the State Engineer, collected from the Upper Laramie aquifer within a future well, analysis of grain size data and geophysical logs, and/ or aquifer testing analysis. 32.2. In any proceeding pursuant to the Court’s retained jurisdiction for the purposes of a final Determination of Applicant’s water rights, the saturated thickness and specific yield will be determined according to the Rules. The methodology and procedures used to make such a determination must be presented to and reviewed by the State Engineer’s Office prior to commencing a process to determine specific yield or saturated thickness. 32.3. Invocation of Retained Jurisdiction. At such time as adequate data are available, any person, including the State Engineer, may invoke the Court's retained jurisdiction to adjust the amount of nontributary groundwater available as described in Paragraph 32.1 above. Within four months of notice that the retained jurisdiction for such purpose has been invoked, the State Engineer shall use the information available to it to make a Final Determination of Facts finding. The State Engineer shall submit such finding to the Water Court and to the Applicant, and the Applicant shall serve the same to all Parties to this case. An adjustment of the amount available pursuant to retained jurisdiction does not preclude further adjustment as additional Future Wells are drilled. The ability to file a petition to invoke retained jurisdiction shall expire 60 days after the Applicant has served copies of the geophysical log for at least four wells in Township 12 North, Range 66 West, at least six wells in Township 11 North, Range 66 West, and at least one well in Township 11 North, Range 67 West. 32.4. Final Determination. If no protest to such finding is filed with the State Engineer and the Court within 60 days of service on Objectors, the Final Determination of Facts shall be incorporated into the Decree by the Water Court. In the event of a protest, or in the event the State Engineer makes no determination within four months, such final determination shall be made by the Water Court pursuant to C.R.S. § 37-92- 305(11) after notice and hearing. 33. Finding of Non-Injury. Applicant has complied with all requirements and met all standards and burdens of proof as necessary for the entry of this Decree. No owners of or persons entitled to use water under a vested water right or decreed conditional water right will be injured or injuriously affected by the entr y of the decree herein. 34. Recordation. Upon entry of this Decree of the Water Court, Applicant may have the Decree recorded in the real property records of Weld County. DATED September 6, 2023 BY THE COURT <6 Honorable Todd 4 wa Water Judge, Water Division No. 1 1010 DATED September 6, 2023 BY THE COURT Honorable Todd Taylor Water Judge, Water Division No. 1 EXHIBIT 1 Parcel No Legal Description 004730300002 15011 SW4 30 12 65 (3S) 004921200005 19719 PT 21 12 66 LYING W OF HWY EXC L1 ALSO EXC BEG ON COLO-WYO BORY LN AT PT FROM WHICH MILE POST 38 A GRADER BLADE SET IN CONCRETE BEARS S89D02'W 435' N89D02'E 187.5 TO PT WHERE COLO-WYO BORY LN INTSECS E LN L2 SOD51'W 143.9' N87D31'W 141.9' N24D13'W 110.8' N03D1O'E 33.6' TO BEG (18R 15S) 004921400006 19718 E2E2 21 12 66 LYING ELY OF C/L OF CHEYENNE-GREELEY STATE HWY EXC UPRR RES (18R) 004922100004 19721 ALL 22 12 66 IN COLO (4R 5Sl 004923100002 19723 ALL 23 12 66 EXC UPRR RES 004924100006 19724 E2E2 24 12 66 (1Rl 004924200008 PT SEC 24-12-66 LOT B REC EXEMPT RE-530 (2.25R 6S) 004925100004 19726 ALL 25 12 66 EXC UPRR RES (4R) 004926200001 19729 W2 26 12 66 004927100006 19730 ALL 27 12 66 EXC UPRR RES 004928100007 19732-B A TRACT OF LAND LOC IN SEC 28 12 66 BEG AT A 1/2 INCH IRON PIN IN ELY ROW LN OF US ROUTE 85 FROM WHICH THE NE COR OF SEC 28 BEARS N77D35'E 2174.81' THENCE N77D56'E 2067.27' TO A 1/2 INCH IRON PIN FROM WHICH THE NE COR OF SAID SEC BEARS N73D32'E 172.36' S19D55'W 1833.50' THENCE S05DW 422.14' S58D05'W 523.73' N56D18'W 1741.34' THENCE N27D33'E 1153.88' TO BEG (80.18A M/L) 004928200001 19732A W2NW4 28 12 66 004928300002 19731 PT W2SW4 28 12 66 LYING W OF HWY 004928400008 19732 E2/E2W2 28 12 66 & PT W2SW4 E OF OLD STATE HWY EXC BEG AT A 1/2 INCH IRON PIN IN ELY ROW LN OF US ROUTE 85 FROM WHICH THE NE COR OF SEC 28 BEARS N77D35'E 2174.81' THENCE N77D56'E 2067.27' TO A 1/2 INCH IRON PIN FROM WHICH THE NE COR OF SAID SEC BEARS N73D32'E 172.36' S19D55'W 1833.50' THENCE SOSDW 422.14' S58D05'W 523 .73' N56D18'W 1741.34' THENCE N27033'E 1153.88' TO BEG 004929100008 19736 ALL 29 12 66 004931100003 19737 ALL 31 12 66 (11L) 004932000004 19739 SE4/W2 32 12 66 004932100005 19738 NE4 32 12 66 (9R) 004933100004 19740 ALL 33 12 66 004934100005 19741 ALL 34 12 66 004935100002 19743 ALL 35 12 66 004936100003 19744 ALL 36 12 66 020301000007 19635 ALL 1 11 66 020302000001 - 19636 ALL 2 11 66 020303000004 19637 ALL 3 11 66 020304000005 19639 E2 & E2W2 4 11 66 020304200022 PT W2 SEC 4-11-66 AND E2 SEC 5-11-66 LOT0REC EXEMPT RECX20-0075 LYING IN W2 SEC4 020305100020 PT W2 SEC 4-11-66 ANO E2 SEC 5-11-66 LOT C REC EXEMPT RECX20-0075 020305300023 ALL 5-11-66 EXC BEG 1321'E & S0006E 705.5 OF NW COR SEC SOD06E 1939 N89D50E 2600 N02D59E 1931.8 N89D54W 1265.8 W 1438 TO BEG ALSO EXC BEG SE COR SEC N89D42W 682.32 TO TRUE POB N89042W 600.74 TO E LN HWY 85 N03008E 1920.78 S86D52E 697.45 S01D01W 383.37 S10019E 589.61 N86052W 248.74 S03D08W 934.39 TO BEG ALSO EXC PT SE4 BEG S35014W 3208 FROM NE4 THENCE N89044E 500 S02052W 500 S89044W 500 N02D52E 500 TO POB ALSO EXC SUB EXEMPT SE-909 ALSO EXC BEG COMM S4 COR S89052E 253.27 NOOD07E 581.84 TO POB N02D58E 1338.14 S76057E 125.46 S83D52E 615.11 S02058W 307.13 S87D01 E 50 S02D58W 16 N87001W 50 S02058W 884.94 S87D01 E 50 S02D58W 20 N87D01W 50 S02D58W 25 N87D01W 850 TO POB ALSO EXC COM SE COR SW4 5-11-66 N89D48E 264.81 NOODOOE 872.34 TPOB N87007W 294.23 N04038E 1109.18 S73D38E 263.27 S02039W 1047.29 TPOB ALSO EXC LYING E HWY 85 020305400019 PT W2 SEC 4-11-66 AND E2 SEC 5-11-66 LOT B REC EXEMPT RECX20-0075 020305400021 PT W2 SEC 4-11-66 AND E2 SEC 5-11-66 LOT D REC EXEMPT RECX20-0075 LYING IN E2 SEC 5 020306000001 19643 N2/SW4 6 11 66 020306400002 19644 SE4 6 11 66 020307000003 19645 ALL 7 11 66 020308000005 19646 NE4/S2 8 11 66 EXC TR 5 (12R) 020308200004 19647 NW4 8 11 66 (4R) 020309000002 19649 ALL 9 11 66 020310100006 NW4/E2 10-11-66 A t t a c h m e n t t o O r d e r - 2 0 2 0 C W 3 1 1 3 020311000004 19653 E2 11 11 66 EXC UNO INT IN ALL MINS 020311200002 19656 NW4 11 11 66 020311300003 19655 SW4 11 11 66 020312000006 19657 N2/N2SE4/SE4SE4 12 11 66 020312300005 19658 SW4 & SW4SE4 12 11 66 020313000005 19660 W2 & NE4 13 11 66 (2R) 020314000001 19664 ALL 14 11 66 (4R) 020315300005 19667 SW4/S2 NW4 15 11 66 EXC OG&M (2R) 020315400004 19666 SE4 15 11 66 (2R) 020316000001 19670A SEC 16 11 66 (JR) 020317000010 19671 ALL 17 11 66 020318000001 19673 N2/SE4 18 11 66 EXC TR 10 020318300002 19674 SW4 18 11 66 020320100007 19681A NE4 20 11 66 020321000002 19682 ALL 21 11 66 (4R) 020322000003 19683 ALL 22 11 66 (4R) 020323000002 19685 ALL 23 11 66 (4R) 020327000004 19690 ALL 27 11 66 020506000002 14924 L3-4 W2W2 & E2SW4 & W2SE4 6 11 65 (5S\ The above listed property description is from Colorado's Weld County Assessor's web-site . A t t a c h m e n t t o O r d e r - 2 0 2 0 C W 3 1 1 3 EXHIBIT 2 Parcel No Legal Description 020125000003 24246 ALL 25 11 67 (4R) 020126000002 24247 E2 26-11-67 EXC THAT PT CONVEYED TO WELD COUNTY FOR WCR 126 020331000003 19700 ALL 31 11 66 A t t a c h m e n t t o O r d e r - 2 0 2 0 C W 3 1 1 3 020311000004 19653 E2 11 11 66 EXC UNO INT IN ALL MINS 020311200002 19656 NW4 11 11 66 020311300003 19655 SW4 11 11 66 020312000006 19657 N2/N2SE4/SE4SE4 12 11 66 020312300005 19658 SW4 & SW4SE4 12 11 66 020313000005 19660 W2 & NE4 13 11 66 (2R) 020314000001 19664 ALL 14 11 66 (4R) 020315300005 19667 SW4/S2 NW4 15 11 66 EXC OG&M (2R) 020315400004 19666 SE4 15 11 66 (2R) 020316000001 19670A SEC 16 11 66 (JR) 020317000010 19671 ALL 17 11 66 020318000001 19673 N2/SE4 18 11 66 EXC TR 10 020318300002 19674 SW4 18 11 66 020320100007 19681A NE4 20 11 66 020321000002 19682 ALL 21 11 66 (4R) 020322000003 19683 ALL 22 11 66 (4R) 020323000002 19685 ALL 23 11 66 (4R) 020327000004 19690 ALL 27 11 66 020331000003 19700 ALL 31 11 66 The above listed property description is from Colorado's Weld County Assessor's web-site . A t t a c h m e n t t o O r d e r - 2 0 2 0 C W 3 1 1 3 T11N T10N T12N T11N R 6 6 W R 6 5 W R 6 7 W R 6 6 W 5 7505700 5 6 5 0 5 6 0 0 55 0 0 54 5 0 60506000 6 3 00 62 00 6150 6 0 005950 5 9 50 5900 580 0 58 5 0 6 100 6 0 506250 6000 6 050 5 900 59 00 5 5 5 0 63 50 615 0 6200 61 50 6100 6000 5 65 0 5600 5 55 0 6 0 50 2322 24 252627 34 3635 56 4 7 98 1718 16 2019 21 282930 31 32 33 25436 1 7 8 109 11 12 17 15 13181614 20 2419212223 28 27 26 252930 31 32 34 3533 36 23 1 10 11 12 131415 242223 252726 363534 161718 19 2120 29 2830 31 32 33 131415 222021 242319 283029 27 26 25 31 34 36333532 19242322 LoneTree Crk Simpson Crk LoneTreeCrk E a s t manCrk CowCrk OwlCrk 3170000 3170000 3180000 3180000 3190000 3190000 3200000 3200000 3210000 3210000 3220000 3220000 3230000 3230000 15 6 0 0 0 0 15 7 0 0 0 0 15 8 0 0 0 0 15 9 0 0 0 0 16 0 0 0 0 0 16 1 0 0 0 0 Pa t h : F : \ L a z y _ D \ M X D s \ F i g u r e 1 _ S i t e L o c a t i o n . m x d D a t e : 1 1 / 1 6 / 2 0 2 0 Date: 11/16/2020 User: dzelmanfahm PREPARED FOR:PREPARED BY: 0 1 SCALE IN MILES FIGURE 1LAZY D RANCH LOCATION ENGINEERING REPORT WELD COUNTY, COLORADO Coordinate System: NAD 1983 StatePlane Colorado North FIPS 0501 Feet LAZY D GRAZINGASSOCIATION ! So ut h P l atteRive r LEGEND THE D DESIGNATED GROUNDWATER BASIN DENVER BASIN GROUNDWATER ADMINISTRATIVE AREA INTERMITTENT STREAM GROUND SURFACE ELEVATIONS (50 FT. INTERVALS)5000 SITE LOCATION A t t a c h m e n t t o O r d e r - 2 0 2 0 C W 3 1 1 3 SUPREME COURT, STATE OF COLORADO Two East 14 Avenue Denver, Colorado 80203 Appeal from District Court, Water Division 1 Honorable Judge Todd Taylor Case No. 2020CW3113 IN RE THE APPLICATION FOR WATER RIGHTS OF LAZY D GRAZING ASSOCIATION, IN WELD COUNTY Opposers-Appellants: City of Sterling and City of Fort Collins v. Applicant-Appellee: Lazy D Grazing Association Opposers-Appellants: Basin Lands, LLC; Bijou Irrigation Company; Bijou Irrigation District; Cache La Poudre Water Users Association; City of Boulder; City of Englewood; City of Greeley, acting by and through its Water and Sewer Board; City of Thornton; L.G. Everist, Inc.; Northern Colorado Water Conservancy District; Mary Estabrook; State Engineer and Division Engineer for Water Division No. 1; and United Water and Sanitation District. Attorneys for City of Sterling, Colorado: Alan E. Curtis, #34571; Virginia M. Sciabbarrasi, #39753 WHITE & JANKOWSKI LLC 1333 W. 120th Ave., Suite 302 Westminster, Colorado 80234 Phone: (303) 595-9441 Fax: (303) 825-5632 Email: alanc@white-jankowski.com virginias@white-jankowski.com Attorney for the City of Fort Collins, Colorado: FORT COLLINS CITY ATTORNEY’S OFFICE Eric R. Potyondy, #38243 300 LaPorte Avenue Fort Collins, Colorado 80521 Phone: (970) 416-2126 Fax: (970) 221-6327 Email: epotyondy@fcgov.com Case Number: DESIGNATION OF RECORD DATE FILED: October 4, 2023 2:52 PM FILING ID: DD0BFED1513BE CASE NUMBER: 2023SA258 2 Opposers-Appellants, City of Sterling and City of Fort Collins, by and through their attorneys, and pursuant to Rule 10 of the Colorado Appellate Rules, respectfully submits this Designation of Record: 1. All pleadings and other documents filed in Case No. 2020CW3113, District Court for Water Division 1 (“Water Court”). 2. The transcripts of the five-day bench trial held on April 10 -12 and 24-25, 2023, copies of which were electronically filed with the Water Court on June 30, 2023. 3. All trial exhibits offered or admitted in Case No. 2020CW3113. 4. All decrees of which the Water Court took judicial notice during trial. Respectfully submitted October 4, 2023. WHITE & JANKOWSKI LLC By: ______________________________ Alan E. Curtis, #34571 Virginia M. Sciabbarrasi, #39753 ATTORNEYS FOR CITY OF STERLING E-Filed per C.R.C.P. 121. Duly signed original on file at White & Jankowski LLC FORT COLLINS CITY ATTORNEY’S OFFICE By: _______________________________ Eric R. Potyondy, #38243 ATTORNEY FOR CITY OF FORT COLLINS 3 CERTIFICATE OF SERVICE I certify on October 4, 2023, a true and correct copy of the foregoing DESIGNATION OF RECORD was served via Colorado Courts E-Filing, on the Division 1 Water Court and the following parties in Case No. 20CW3113: ______________________________________ Andrea Browne, Legal Administrative Assistant Party Name Party Type Attorney Name/Organization Basin Lands LLC Opposer MATTHEW MACHADO (Lyons Gaddis PC) Bijou Irrigation Company Opposer BRADLEY NEIL KERSHAW (Vranesh and Raisch) STUART B CORBRIDGE (Vranesh and Raisch) Bijou Irrigation District Opposer BRADLEY NEIL KERSHAW (Vranesh and Raisch) STUART B CORBRIDGE (Vranesh and Raisch) Cache La Poudre Water Users Association Opposer DANIEL KENNETH BROWN (Fischer Brown Bartlett Larsen and Irby PC) WHITNEY PHILLIPS COULTER (Fischer Brown Bartlett Larsen and Irby PC) City of Boulder Opposer JESSICA LYNN PAULT-ATIASE (Boulder City Attorney’s Office) LISA M THOMPSON (Trout Raley) MICHAEL A KOPP (Trout Raley) City of Englewood Opposer GEOFFREY M WILLIAMSON (Berg Hill Greenleaf & Ruscitti LLP) MEGAN CHRISTENSEN (Berg Hill Greenleaf & Ruscitti LLP) PATRICK MICHAEL HAINES (Berg Hill Greenleaf & Ruscitti LLP) 4 Party Name Party Type Attorney Name/Organization PETER D NICHOLS (Berg Hill Greenleaf & Ruscitti LLP) City of Fort Collins Opposer ERIC RYAN POTYONDY (City Attorney’s Office) City of Greeley Acting By And Through Opposer CAROLYN F BURR (Welborn Sullivan Meck & Tooley, P.C.) DANIEL JAMES BIWER (City of Greeley) JAMES MERLE NOBLE (Welborn Sullivan Meck & Tooley, P.C.) JENS JENSEN (Welborn Sullivan Meck & Tooley, P.C.) City of Sterling Opposer ALAN E CURTIS (White and Jankowski LLC) VIRGINIA MARIE SCIABBARRASI (White and Jankowski LLC) City of Thornton Opposer KARA NICOLE GODBEHERE (City of Thornton) Division 1 Engineer Division Engineer DIVISION 1 WATER ENGINEER (State of Colorado DWR Division 1) Lazy D Grazing Assoc Applicant BRADLEY CHARLES GRASMICK (Lawrence Custer Grasmick Jones and Donovan LLP) RICHARD T LI PUMA (Lawrence Custer Grasmick Jones and Donovan LLP) RYAN MATTHEW DONOVAN (Lawrence Custer Grasmick Jones and Donovan LLP) WESLEY SAGE KNOLL (Lawrence Custer Grasmick Jones and Donovan LLP) Lg Everist Inc Opposer MATTHEW LAKE MERRILL (MERRILL LAW LLC) Mary Estabrook Opposer N/A 5 Party Name Party Type Attorney Name/Organization Northern Colorado Water Conservancy District Opposer BENNETT WILLIAM RALEY (Trout Raley) LISA M THOMPSON (Trout Raley) MICHAEL A KOPP (Trout Raley) State Engineer State Engineer COLORADO DIVISION OF WATER RESOURCES (State of Colorado - Division of Water Resources) State Engineer And Water Div 1 Engineer Opposer BRUCE CONLAN WALTERS (CO Attorney General) EMILIE BLAKE POLLEY (CO Attorney General) United Water And Sanitation District Opposer ANN MARIE RHODES (The Law Office of Tod J Smith) TOD JAY SMITH (The Law Office of Tod J Smith)